By Babar Ayaz
Once again the strong centre lobbies are active to roll back the gains of the Eighteenth Amendment. The Eighteenth Amendment was the mother of all amendments because through this one amendment, over a 100 clauses of the constitution were changed. It was a major attempt to solve the provincial autonomy conundrum which has marred the country’s constitutional history and had created bad blood between the federating units.
To understand the significance and implication of the “Constitution (Eighteenth Amendment) Act, 2010” one has to briefly recap the chequered constitutional history of Pakistan. The first constituent assembly took seven years and when it nearly completed the draft constitution, the Governor General dissolved the assembly. Finally after nine years of its inception, Pakistan’s second constituent assembly passed a constitution in March 1956, adopting the parliamentary system. These nine years the country was ruled on the basis of Government of India Act, 1935.
Before adopting the 1956, constitution the provincial rights were trampled by the government in 1955, when it merged four provinces of West Pakistan into one unit. The devious motive was to claim parity with East Pakistan. But this constitution was abrogated by General Ayub Khan who declared Martial Law in the country in October 1958. When he needed to lift the Martial Law, he brought in his own constitution in 1962, with the Presidential form of government inspired by the American system.
Ayub Khan was replaced by General Yahya Khan, who promised to hold the elections and conceded to the major demands — of the people’s movement — by promising a parliamentary democracy and restoration of the four provinces of West Pakistan. After the election, the National Assembly was supposed to give a new constitution within a year. But reluctance of the Pakistani establishment and Zulfikar Ali Bhutto to accept the six points of Awami League (AL) leader Sheikh Mujibur Rehman, unleashed a liberation movement in East Pakistan. AL was demanding a more provincial autonomy. After the liberation of Bangladesh, Bhutto took over and managed to give a consensus Constitution in 1973.
Bhutto was removed by General Ziaul Haq in 1977, and once again Martial Law was imposed. Hence all fundamental rights given in the 1973 constitution were held in ‘abeyance.’ When he restored the constitution in 1985, the Eighth Amendment was introduced to validate his rule. This transferred most of the prime minister’s powers to the president. For future military interventions without resorting to Martial Law he opened a burglar’s window in the constitution by inserting Article 58 (2) and 2(B). This gave constitutional power to President General Zia, to dissolve the National Assembly and oust the government at his discretion. This became the most controversial clause of the constitution.
It was first used by General Zia for dismissing the government of Mohammed Khan Junejo in 1988. It was invoked by the establishment to sack Benazir Bhutto and Nawaz Sharif governments twice in the nineties. In the last stint Nawaz Sharif had come to power with a ‘heavy mandate’ and removed this clause from the constitution through an amendment. So when Musharraf led a coup against him in October 1999, he had to come in directly as the “so-called safety valve of Article 58 (2) and 2 (B)” (as the establishment likes to call it) was not available for ambushing on an elected government.
To legitimise his rule he further mutilated the constitution by bringing in the Legal Framework Order, 2002 and the Seventeenth Amendment 2003. This amendment increased the powers of the president and validated all the actions of Musharraf since his take-over in 1999. However, the Seventeenth Amendment had some positive features also, like increase in the reserved seats for women in the National and Provincial assemblies and in local councils; lowering the voting age to 18 years; abolition of separate electorate system for the minorities; and increase in National and Provincial Assemblies seats.
It was in this political setting that Benazir Bhutto and Nawaz Sharif, each having been bitten twice by the military establishment, met in London in May 2005, and decided to bury their hatchets. They signed a Charter of Democracy (CoD) underlining: “that the military dictatorship and the nation cannot co-exist — as military involvement adversely affects the economy and the democratic institutions as well as the defence capabilities, and the integrity of the country — the nation needs a new direction, different from a militaristic and regimental approach of the Bonapartist regimes.”
Both the leaders reaffirmed in the CoD their commitment to undiluted democracy, decentralisation and devolution of power, maximum provincial autonomy, empowerment of the people at the grassroots level, a free and independent media, an independent judiciary and settlement of disputes with the neighbours through peaceful means. They pledged cleansing the 1973, constitution from the amendments made by the military rulers, particularly repealing of the Seventeenth Amendment of Musharraf. Benazir Bhutto and Nawaz Sharif were also keen to remove the article from the constitution which barred any elected member to be the prime minister of the country for the third time. Musharraf had inserted this clause in the constitution to keep both the popular leaders of the country out of power, even if their party won the election.
Once the PPP-led coalition came into power Nawaz Sharif’s Pakistan Muslim League started pressing for the implementation of the CoD. His contention was that the Seventeenth Amendment should be repealed right away. But the PPP-led coalition wisely linked deletion of disputed clauses of the Seventeenth Amendment with the issue of provincial autonomy and the demand of the NWFP government that their province should be renamed as Pakhtunkhwa.
As in most of the democracies in the world the regional, ethnic leadership has emerged much stronger in Pakistan in the last two decades. The political future of the region is that no national party would be able to form a government without the support of the regional parties. This trend has strengthened the centrifugal forces in Pakistan also, who demand more autonomy for the federating units. These regional parties had insisted that the Eighteenth Amendment should deal with the provincial autonomy issues also because they were more important to them.
To achieve these objectives a Parliamentary Committee for Constitutional Reforms (PCCR) was formed with the representation of all political parties, which have presence in the two houses of the parliament. This committee was criticised for taking too long, but it did the historic job of introducing 102 amendments in the Constitution of Pakistan, all rolled up in the jumbo Eighteenth Amendment. The political dimension of this momentous event is that a consensus document was approved unanimously by the National Assembly amply; proving that democracy can work in Pakistan. It also shows that in a country where extremists have resorted to terrorism, the majority of the people are moderate and believe in accommodating each other’s views in the democratic spirit.
This historic amendment has restored the Parliamentary system, which was distorted into a quasi-president system through the Eighth and Seventeenth Amendments by the military dictators. At the very outset the Eighteenth Amendment first repealed the Legal Framework Order 2002 and Seventeenth Amendment 2003, instead of accepting them as part of the constitution. In the past the amendments introduced by the dictators were accepted as a part of the constitution by the democratic government and only some controversial articles and clauses were deleted or changed.
The most important gain of the proposed amendments was that the Centre has ceded more autonomy to the provinces. This strengthened the federation, as its units were more satisfied with the new division of powers. Undoubtedly there were still grumblings from the nationalist forces in smaller provinces, but these amendments coupled with the National Finance Commission Award (NFC) helped in assuaging the nationalist forces of smaller provinces.
In spite of the Eighteenth amendment, some of the powers that were supposed to be transferred to provinces are being held back by the reluctant federal government.
(The writer is the author of What’s wrong with Pakistan? And can be reached at email@example.com)